Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO, CRYSTAL AMAYA, BRAD CATES, BRIAN MOORE, AND KIM RONQUILLO, Plaintiffs, v. 1:14-CV-00599-WJ-SMV SAM BREGMAN, MICHAEL CORWIN, JAMIE ESTRADA, ANISSA GALASSINI-FORD, JASON LOERA, and BRUCE WETHERBEE, Defendants. PLAINTIFFS’ MOTION PURSUANT TO FED. R. CIV. P. 54(b) TO RECONSIDER THE, ORDER DISMISSING ANISSA GALISSINI-FORD AS A DEFENDANT [ECF No. 98], TO VACATE THE DISMISSAL ORDER AS TO MS. FORD, AND TO REINSTATE AND REJOIN MS. FORD AS A PARTY DEFENDANT IN THIS CASE Plaintiffs Crystal Amaya, Brad Cates, Brian Moore, and Kim Ronquillo, by and through their counsel, hereby move the Court pursuant to Fed. R. Civ. P. $4(b) to reconsider the March 23, 2015 Order dismissing Anissa Galassinj-Ford (“Ms, Ford”) as a defendant, to vacate the Order of dismissal, and to reinstate and rejoin Ms. Ford as a party defendant in this case, INTRODUCTION Ms. Ford was dismissed as a defendant by Opinion and Order dated March 23, 2015 [ECF No. 98]. Post-dismissal information and documents provided by defendant Jason Loera and recently produced by defendant Jamie Estrada and Ms, Ford — information and documents that previously were unavailable ~ reveal that Ms. Ford was intimately involved in the illegal conduct regarding the emails stolen from the @susana2010 domain. Ms. Ford’s involvement in the illegal conduct regarding the emails stolen from the @susana2010 domain was obviously known to her but not acknowledged, admitted, or addressed in her motion to dismiss papers [ECP No. 66 and 90]. Further, the level of Ms. Ford’s involvement was consciously concealed in her recentCase 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 2 of 19 responses to Plaintiffs’ Subpoena Duces Tecum [ECF No. 298 and 301]. Despite the concerted efforts of Messrs. Bregman, Corwin, Estrada, Wetherbee, and Ms. Ford throughout the discovery process, prior to the Court ruling on various discovery motions, to delay and deprive the Plaintiffs of information and documents that relate to the unlawful interception, endeavor to disclose, disclosure, endeavor to use, and use of the Plaintiffs’ stolen emails obtained from the @susana2010 domain, Plaintiffs now have developed sufficient information to warrant reinstatement of their direct claims against Ms. Ford for violation of the Electronic ‘Communications Privacy Act of 1986, 18 U.S.C. § 2510 et seq. (“ECPA”),! In her motion to dismiss papers, Ms. Ford argued that the First Amended Complaint did “not allege[] facts showing that she intercepted emails or did anything else actionable under the [Federal Wiretap Act].” See ECF No. 90 at S. Moreover, Ms. Ford’s motion to dismiss papers did nothing to reveal that Ms. Ford was Mr. Estrada’s confidant referenced in the United States? Sentencing Memorandum in United States v Estrada, Case No. 1:13-cr-01877 [ECF No. 95] and in whom Mr. Estrada “had confided beforehand about his idea of taking over the domain.” No. 95 at 6 (“United States’ Sentencing Memorandum” submitted herewith as Exhibit 1). However, documents produced by Mr. Loera reveal that Ms. Ford did more than just receive a few stolen ' The Court’s March 23, 2015 Order dismissed the Third Claim for Relief against all Defendants and dismissed the Second Claim for Relief only as against Ms. Ford. ECF No.98. Although the PlaintiffS’ respectfully submit that they believe the Court erred in dismissing the Third Claim for Relief against all Defendants, the Plaintiffs are not asking this Court to reconsider that interlocutory order and are not sceking to reinstate that claim against Ms. Ford or any other Defendant at this time, In limiting this motion for Rule $4(b) relief to the disinissal of the Second Claim for Relief as against Ms. Ford, the Plaintiffs reserve, preserve and do not waive their right and ability to challenge the dismissal of the Third Claim for Relief on appeal upon the entry of a final judgment in this matter. As a practical matter, there will be no need to appeal the dismissal of the Third Claim for Relief if cach of the Defendants is found direetly liable for their conduct. See, e.g., Kasey, Inc. v Alpine Realty Now, Inc., 2012 Mich, App. LEXIS 3 * 12 (Jan. 3, 2012) (“As discussed above, the jury properly found each of the defendants directly liable for fraud and breach of fiduciary duty, thus there is no need to resort to a concert of action theory. 2Case 1:14-cv-00599-WJ-SMV Document 415. Filed 03/22/16 Page 3 of 19 mails and store them in the memory of her computer. Documents produced by Mr. Loera also allow one to make the reasonable inference that Ms, Ford was Mr. Estrada’s confidant concerning, the stolen emails even before and shortly after the emails were stolen. Compare Mr. Estrada’s July 29, 2011 email from a hijacked email address from the @susana2010 domain to a redacted recipient that read “Bhahahahahahahahahehal!!!” [ECF No, 95-7 in Estrada criminal case submitted herewith as Exhibit 2] with text message from Ms. Ford to Mr. Loera dated June 15, 2012 [07:30:40 MDT] that read “Bhahbahahahshabah!!!!” [ PiaintiffstromT.ocra 06813 submitted herewith as Exhibit 3]. Based on the documents produced by Mr. Loera and Mr. Estrada, the information now known or that can be reasonably inferred concerning Ms. Fords role in the interception, disclosure, endeavor to disclose, use, and endeavor to use the stolen emails, includes: (1) Mr. Estrada told Ms. Ford of his intentions to take over the @susana2010 domain and intercept the emails sent to or from the domain before he did so. See, supra (United States? Sentencing Memorandum at 6), Further, after Mr. Estrada “successfully arranged to take control of the domain, [he] clearly reveled [to Ms. Ford] in what he had accomplished.” Jd. Ms. Ford thus knew or should have known of the illegality of Mr. Estrada’s interception and her conduct relating to the stolen emails. (2) Ms. Ford disclosed and used at least certain of the stolen emails [See Exhibit 4 [PlaintifisfromLoera 03422](cmail from Ms. Ford to Mr. Bregman forwarding email intercepted from the @susana2010 domain and addressed to Susana.m@susana2010.com)]; (3) Mr. Bregman introduced Mr. Locra to Ms. Ford for the purpose of Ms. Ford facilitating and convineing Mr. Estrada to illegally use and disclose the illegally intercepted emails from the @susan22010 domain, including Plaintiffs" stolen emails [see Declaration of Jason Loera 497-12 ? Notably, neither the referenced email nor text message was included in the production of documents produced by Mr, Estrada or Ms, Ford. 3Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 4 of 19 submitted as Exhibit 5]; (© Ms. Ford was actively involved in communications between Mr. Loera, Mr. Bstrada and Mr, Bregman concerning the stolen emails [see e.g. text messages between Mr. Loera and Ms. Ford produced as PlaintiffsfromlLoera 06812-13 end 06820 submitted as Exhibit 3]; (5) Ms. Ford was actively involved in the use, endeavor to use, disclosure, and endeavor to disclose the stolen emails [see Loera email dated Novembet 26, 2012 produced as PlaintiffstromLoera 03588-03590 submitted as Exhibit 6 and Loera “account of my involvement in emailgate” transmitted with an email dated August 13, 2013 produced as PlaintiffsfromLoera 10378-10382 submitted as Exhibit 7}; (©) Text messages between Ms, Ford and Mr. Loera included the following exchanges from which one can reasonably infer, coupled with the other information now known concerning Ms. Ford’s conduct, Ms. Ford's consciousness of illegal conduct: Ms. Ford to Mr. Locra: “Got Jamie convinced, Have good stuf for u today. Will talk after we are done with Laura.” [6/12/2012 07:20:00 MDT] Mr. Loera to Ms, Ford: “Excellent ;)” [6122012 08:59:38 MDT] Mr, Locra to Ms. Ford: _ “Can you send me jamies Phone . Sam wants to call. Him. (6/13/2012 19:00:53 MDT] Ms. Ford to Mr. Loera: “Sure! He would like that! (575) — original] [6/13/2012 19:04:00] * + ~ {number in * Mr. Loera to Ms. Ford: “I think Jamie should give me the pw [password] ASAP. So Ican dl [download]. Go daddy may wipe it.” [6/15/2012 15:08:12 MDT] Ms. Ford to Mr. Loera: “Jamie wanting to hold off on emails again. He is wiggin’ again. Call when you can” (6/17/2012 18:29:52] * * ‘ ‘Ms. Ford to Mr. Locra: “Ask Sam if he knows a cyber crime attorney. T want to talk fo one with Sam. If we r protected then I might want to come out.” [7/6/2012 19:57:20] Mr. Loera to Ms. Ford: “Understood. Meeting Sam tomorrow.” [7/6/2012 * See Jason Loera Declaration dated January 9, 2016 (see ECF No. 318 submitted, in part, as Exhibit 8) relating to documents produced by Mr. Loera, 4Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 5 of 19 :00;29] Ms, Ford to Mr. Loera: “I’m sick of this! If we come out and say yes we did it and shame in the media for pursuing us and now u need to get to the root of the problem!” [7/6/2012 20:03:44] Mr. Loera to Ms. Ford: “I’m pissed as well. ‘These journalists are whores, We need to meet tomorrow and strategize.” [7/6/2012 20:04:46] Ms. Ford to Mr. Loera: “Ok. Let me know.” [7/6/2012 20:05:52] Exhibit 3 [PlaintifiifiomLoera 02680]. (7) Ms. Ford, now reasonably believed to be the person the government characterized as Mr. Esttada’s confidant, received and reviewed the stolen emails with Mr. Estrada and along with Mr. Estrada “still ‘call{ed] the shots’ when it came to the press” and exercised control about the stolen emails and which ones would be released. See, United States’ Sentencing Memorandum at 8-9 and n.6 submitted as Exhibit 1; see also Exhibit 10 [FordSubpoen00280] (“After renewing the Domain and intercepting emails intended for Martinez. and members of her staff, Estrada then forwarded the emails to various other individuals, including your client, Anissa Ford.”), (8) From Mr. Loera’s copy of the texts between Mr. Loera and Ms. Ford, Ms. Ford states she is proud to be part of the “team” with Mr. Locra and Mr, Estrada to “take down” Susana Martinez. through the use and disclosure of the stolen emails: Ms. Ford to Mr. Loera: “We r going to take this bitch down! I fucking HATE her!” [9/1/2012 10:52:45 MDT] Mr. Loera to Ms. Ford: “Enjoy your weekend knowing that next week will be the biggest political scandal in the history of NM. It's a long way down for SM. It will be stretching her spanks to the limit;)” [9/01/2012 12:10:19 MDT] Ms. Ford to Mr. Loera: “Hiahahhal!! So glad fo have met u guys! It’s gonna be. Great ride! [9/01/2012 12:12:16 MDT] Mr. Locra to Ms. Ford: “Must say with you and JE [Jamie Estrada] we make a great team and thats half the battle.;)” [9/01/2012 12:13:22 MDT] ‘Ms. Ford to Mr, Loera: “Aww. Thanks, Proud to be a part of it!” 9/01/2012 12:14: 24 MDT]Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 6 of 19 Ms. Ford to Mr. Locra: “And I can’t fucking wait till Tuesday! Hahaha” 9/01/2012 12:14:24 MDT) Exhibit 3 [PlaintiffifiomLoera 06832}. (©) Ms. Ford was a subject in the FBI’s investigation of the illegal interception, use and disclosure of the @susana2010 domain emails, PlaintifisfomLoera 06674-75 submitted as Exhibit 9.° It appears that Ms. Ford required use immunity in exchange for her agreement to provide testimony against Mr. Estrada and Mr. Loera [see Exhibit 10 (letters between Ms. Ford's allorney and FBI) Ms. Ford was ordered to produce by March 18, 2016 [ECF No. 384], including February 5, 2013 letter to Ms. Ford's counsel (“Because you have indicated that your client will require use immunity as a condition of submitting to further interviews and to testifying, the United States Attomey’s Office for the District of New Mexico is willing to provide Ms. Ford with use immunity.”)]. Ms. Ford’s limited document production did not include her copies of many relevant texts and emails that were produced by Mr. Loera and Mr. Estrada, Ms. Ford has embarked on an effort to deny all plausible readings of her own texts and emails (produced only by Mr. Estrada or “ Although Ms, Ford has not produced her texts and emails relating to the theft and dissemination of the stolen emails, she has produced emails from the same time period concerning her work for the Democratic challenger to the incumbent Republican District Attorney. The selective production begs the question of whether Ms. Ford’s texts and emails relating to the theft and dissemination of the stolen emails still cxist or whether they were destroyed as Ms, Ford communicated to Mr. Loora. See Exhibit 5 919 (“Ms. Ford told us that she buried her hard drives in her back yard.”) and Exhibit 7 at PlaintiffstromLoera 10381 (“Later that evening Anissa called me and asked that I meet her and Jamie the next day at Dions Pizza in Rio Rancho, When I arrived at the meeting and sat down they asked that [ put my phone on the table and turn it off, ! had intended to record the conversation, Jamie immediately told me to destroy my computer and any evidence of the emails that [had and assured me that there was no way they could link him to the hijacking of emails, Anissa said she was going to bury her hard drive in her backyard”). * “Its the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a ‘target’ or ‘subject? of a grand jury investigation. ... A ‘subject” of an investigation is a person whose conduct is within the scope of a grand jury’s investigation.” United States Attorneys’ Manual 9-11.151, available at https:/Avww.justice.gov/usam/mitedCase 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 7 of 19 ‘Mr, Loera) that put her at the epicenter of the thefi, use, and disclosure of the stolen emails. Any suggestion that Ms. Ford was a passive member of the team in the theft, use, and disclosure of the stolen emails is cortainly belied by her texts and emails produced by Mr. Loera and by what are now reasonably inferred to be her toxts and emails attached to the United States’ Sentencing Memorandum. See, e.g., Exhibit 1 at 8-9 and ECF No. 95-15 submitted herewith as Exhibit 11 (8/15/2012 [09:30:08 MDT] text message now believed fo be from Ms. Ford to Mr. Estrada: “T ‘want him to know WE call the shots” and Mr. Estrada’s 8/15/2012 [09:31:10 MDT] text message to a person now believed to be Ms. Ford: “Got it, Okt"). Although Ms, Ford has failed to produce emails and text messages produced by Messrs. ‘Loera and Estrada that implicate her in conduct that violated the ECPA, Ms. Ford denies any destruction of evidence. See n.4 supra, But Ms. Ford’s efforts to conceal her conduct regarding the stolen emails are on display in her motion to dismiss and more recently in her responses to the Subpoena. [ECF Nos. 298 and 301]. For example, Request No, 10 requested Ms. Ford to “[p}roduce any and all documents (texts, emails and voice mails) describing or concerning your efforts to convince Jamie Estrada or others to disseminate stolen emails.” In response, Ms, Ford stated: “Answer: Ms. Ford made no efforts to convince Jamie Estrada or others to disseminate stolen emails and accordingly has no documents responsive to this request.” [ECF No. 298 at 6]. Ms, Fords text messages with Mr, Loera that have only been produced by Mr. Losta reveal that this answer is false and that Ms. Ford was intimately involved in the disclosure and use of the stolen emails. See, e.g., Exhibit 3 (Ms, Ford to Mr. Loera: “Got Jamie convinced. Have good stuff for u today. Will talk after we are done with Laura.” [6/12/2012 07:20:00 MDT] .... Ms. Ford fo Mr, Loera: “Jamie wanting to hold off on emails again, He is Wiggin’ again, Call when you can” [6/17/2012 18:29:52) 7Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 8 of 19 In addition, Ms. Ford’s attomeys state in her supplemental filing in support of motions to quash that “Ms, Ford has never been a subject or target of any criminal investigation by the United States Attomey’s Office that led to the conviction of defendant Jamie Estrada.” See ECF No. 301 a2. This assertion is directly contradicted by the FBI report produced by Mr. Locra: “Thus far, one of the subjects, Anissa Ford, has agreed to testify against Jamie Estrada and Jason Loera, and has locked in her testimony before the Federal Grand Jury” [See Exhibit 9 (PlaintiffsfromLoera 06674-75)}; see also Exhibit 7 at Plaintffsfromloera 10386 (“According to Anissa Fords atfomey Scott Wertheim she is a cooperating witness.”). Moreover, Ms. Ford attempted to withhold documents related to the FBI's investigation of Ms, Ford under spurious arguments of confidentiality and privilege ~ arguments Magistrate Judge Vidmar rejected at a hearing on February 26, 2016 and in his February 29, 2016 Order, ECF No. 384 at 2 (“Request No. 9 Objection overruled. Ms. Ford must produce items responsive to Request 9. Specifically, she ‘must produce the documents Ixbeled in her privilege log as Nos. 9, 10, 11, and 12 (FordSubpoena 00275-00281) to Plaintiffs no later than March 18, 2016.”); see also Ms. Ford’s Privilege Log served on February 5, 2016 [ECF No. 360] and submitted herewith as Exhibit 12, None of the documents produced by Ms. Ford pursuant to the February 29, 2016 Order [ECF No. 384] contradict the FBI's characterization of Ms, Ford as “one of the subjects” of the investigation, See Exhibit 9 (PlaintiffisfiomLoera 06674-75). Based on the documents provided by Mr. Loera, including the FBI report, and the recently produced communications between Ms, Ford’s attomeys and the United States Attomoys? Office in connection with the indictment of Mr, Estrada, itis clear that Ms, Ford was an active participant {in the interception, endeavor to intercept, use, endeavor to use, disclosure and/or endeavor to disclose the stolen emails. Ms, Ford was at the epicenter of all the conduct, Based on the new, although still limited, information Plaintifi’s have obtained to date, Plaintifts assert that the Order 8Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 9 of 19 dismissing Ms. Ford as a defendant should be reconsidered and vacated and that Ms, Ford should be rejoined and reinstated as a defendant in this case.* ARGUMENT 1. FED. R. CIV. P. 54(b) APPLIES TO THIS MOTION. In Plaintiffs" oppositions to Ms, Ford’s motions to quash subpocnas, Plaintiffs? counsel stated: “Based on the documents provided by Mr. Loera, Plaintiffs are evaluating a Fed. R. Civ. P. 60(b) motion to set aside the dismissal of Ms. Ford and to again join her as a defendant in this, case.” ECF No. 340 at4. The reference to Rule 60(b) was in error, Because the Court’s March 23, 2015 Order dismissing Ms. Ford as a defendant in this action is an interlocutory Order and not a final Order, Plaintfis' reference should have been to Rule 54(b) and not to Rule 60(b). In Raytheon Constructors Inc. v. Asarco Incorporated, 368 F.3d 1214 (10" Cir, 2003), the Tenth Circuit stated: The district court was incorrect to treat Raytheon’s motion for reconsideration under Rule 60(6), which only applies to final orders or judgments, Instead, “any order . . . however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties... is subject to revision at any time “This motion is opposed. Plaintiffs’ counsels March 19, 2016 email to Defendants’ counsel, Mr. Wetherbee, and Ms. Ford’s counsel to determine whether this motion would be opposed, stated in part: “Based on a review of the new evidence since the Court’s March 23, 2015 Order, including without limitation, the correspondence between Ms, Ford’s attorneys and the FBI, it now appears that one can make the reasonable inference that Ms. Ford is Mr. Estrada’s “confidant” referenced throughout the United States Sentencing Memorandum filed in Me, Estrada’s criminal case as ECF No. 95. If we are mistaken in reaching this conclusion, please let us know (and who you may contend is the “confidant” if not Ms. Ford) so that we can reevaluate our position in light of that information.” See Exhibit 13. Mr. Wetherbee and Counsel for Messrs. Estrada, Corwin and Bregman have stated that their clients oppose the motion. Despite discovery served on Mr. Estrada in July that requested that he identify communications that he had with any person relating to the @susana2010 domain, Mr. Estrada’s counsel did not respond to the question whether it was correct to reasonably infer that Ms. Ford was Mr. Estrada’s “confidant.” For the reasons stated herein, new evidence, including Mr. Estrada’s silence on this issue, supports the reasonable inference that Ms. Ford is the “confidant” referenced in the United States’ Sentencing Memorandum. As of this filing, Ms. Ford’s counsel has not responded to Plaintiffs" counsel's March 19, 2016 email. 9Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 10 of 19 before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” FED.R.CIV.P. 54(6). 1d, wt 1217; see also, Gelder v. Coxcom, Inc., 969 F. 3d 966, 969 (10th Cir. 2012) (“But Rule 60(6) is limited to relief from ‘a final judgment, order or proceeding,’ As the advisory committee note to the 1946 Amendment to Rule 60 states: “The addition of the qualifying word “final” emphasizes the character of the judgments, orders or proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not brought within the restrictions of the rule...."”). I. RULE 54(b) STANDARDS. Fed. R. Civ. P. 54(b) provides: (®) Judgment on Multiple Claims or Involving Multiple Parties, When an action presents more than one claim for relief ~ whether as a claim, counterclaim, crossclaim, or third-party claim - or wien multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties but only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the Parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties” rights and liabilities, ‘The Court’s March 23, 2015 Opinion and Order dismissing Ms. Ford as a defendant but ‘maintaining claims against all other Defendants is not a final order — itis an interlocutory Order, “[Al distriot court always has the inherent power to reconsider its interlocutory rulings” and the Tenth Circuit “encourago[s] a court to do so where error is apparent.” Warren v. American Bankers Insurance of Florida, 507 F.3d 1239, 1243 (10th Ci. 2007); see also STC.UNM v. Intel Conp., 2013 US, Dist. LEXIS 189296, *9 (D.N.M. Jan, 17, 2013) (“District courts have inherent power fo reconsider interlocutory rulings, and the Tenth Circuit has encouraged courts to do so ‘Whenever ‘error is apparent.’ [citing Warren] Accordingly, ifa cout finds that it erred in a legal or factual determination that did not result in a final judgment, it may exercise discretion and revise its ruling a any point before a final judgment is entered. Fed. R. Civ. P. 54(b).”). 10Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 11 of 19 ‘The standard for applying Rule 54(b) to revise an interlocutory order has been expressed as follows: District courts have authority both under common law and Rule 54(b) to reconsider interlocutory orders and to reopen any part of a case before entry of final judgment. See Mallory [v. Eyrich, 922 F.2d 1273, 1282 (6" Cir. 1991)]. This authority allows district courts “to afford such relief from [interlocutory orders] as justice requires.” Citibank (South Dakota), N.A. v, FDIC, 857 F. Supp. 976, 981 (D.D.C. 1995); see also Melancon v. Texaco, Inc., 659 ¥.2d 551, 553 (5 Cir, 1981), Traditionally, courts will find justification for reconsidering interlocutory orders when there is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a cleat error or prevent manifest injustice. Reich v. Hall Holding Co,, 990 F. Supp. 955, 965 (N.D. Ohio 1998), [footnote omitted] Rodriguez. Tennessee Laborers Health & Welfare Fund, 89 Fed. Appx. 949, 959 (6th Cir. 2004); of also ECF No. 400 at n.2 (“Reconsideration’ of an order in federal court is only available under quite nazrow circumstances. A motion for reconsideration is an ‘inappropriate vehicle[] to reargue an issue [or] advance[] new arguments, or supporting facts which were available at the time of the original motion.’ Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000), Rather, ‘[g}rounds warranting « motion to reconsider include (1) an intervening change in the controlling law, 2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.’ Id see Fed. R. Civ. P. $9().”). Here, justice requires reinstatement of Ms, Ford as a defendant based on the new evidence that only became available after the Court's March 23, 2015 Order, lM. THE NEW EVIDENCE REVEALED THROUGH THE LIMITED DISCOVERY TO DATE FOLLOWING THE COURT'S MARCH 23, 2015 ORDER IS SUFFICIENT TO SUPPORT REINSTATING THE PLAINTIFFS’ CLAIM AGAINST MS. FORD. Tn this case, itis beyond dispute that Plaintiffs” emails from the @susana2010 domain were illegally stolen, intercepted, used, and disclosed in violation of the criminal and civil provisions of the ECPA: ulCase 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 12 of 19 This case is about stolen emails. ... Between July 2011 and June 2012, Defendant Estrada intercepied hundreds of emails sent to addresses at the susana2010.com domain, leaving the senders and recipients unaware that the messages had been intercepted. Defendant Estrada [footnote 2] shared the intercepted emails with the Governor’s political opponents, including Defendant Jason Loera, a Democratic consultant working for the Grassroots New Mexico political committee. Plaintitts claim that Loera in turn provided some or all of the stolen emails to Defendant Wetherbee, who was affiliated with the group Independent Source Political Action Committee (ISPAC’). ‘See ECF No, 283 at 1-2 and n.2 ‘The new evidence previously unavailable and obtained after the Court’s March 23, 2015 Order reveals that Ms. Ford knew of Mr. Estrada’s intention to intercept the @susana2010 domain before the emails were stolen, actively convinced Mr. Estrada to release the illegally intercepted ‘emails, and that Ms. Ford herself used, endeavored to use, disclosed, and endeavored to disclose at least certain of those emails. See, e.g., Exhibit 1,3, and 4, The new evidence from Mr, Loera and Mr. Estrada also strongly suggests and allows one to reasonably infer that Ms. Ford was Mr. Estrada’s previously unidontified “confidant” who conferred with Mr, Estrada about his plans to intercept, disclose and use the @susana2010 domain emails before he did so. See, e.g., United States’ Sentencing Memorandum [Exhibit 1 at 6]. Ms. Ford argued in her motion to dismiss, “[without more, Plaintiffs" allegations that Ms. Ford and Mr. Estrada knew each other, and communicated regularly, do not establish that she ‘knew about his interception of Plaintiffs” emails, much less that she herself intercepted, used, or disclosed those emails.” ECF No. 66 at 9. Ms. Ford made similar arguments in her reply. See, e.g. ECF No. 90 at 2 (“The fundamental failure in Plaintiffs’ FAC is that it does not make adequate factual allegations regarding what Plaintiffs claim Ms. Ford did that enables them to recover against her.... [A] plaintiff must plead enough factual content to allow the court to draw a reasonable inference that the defendant is liable for the misconduct alleged”). As a result of Ms. Ford’s arguments that Plaintiffs could not allege sufficient facts upon 12Case 1:14-cv-00599-WJ-SMV Document 415 Filed 09/22/16 Page 13 of 19 which the court could “draw a reasonable inference that the defendant is liable for the misconduct alleged,” under the standards of Bell Atl. Corp. v. Twombly, $50'U.S. $44 (2007) and Asheroft » Iqbal, $56 U.S. 662 (2009), Ms. Ford was dismissed as a defendant, ECF No. 98. The Court determined that the allegations and factual content in the First Amended Complaint were not sufficient to allow the Court to draw the reasonable inference that Ms. Ford could be held liable for the misconduct alleged. Id at 15-18, Despite Defendants’ efforts to deprive Plaintiffs of relevant discovery, Plaintiffs now have the “more” demanded by Ms. Ford’s counsel sufficient to allow the Court to draw the reasonable inferences that Ms. Ford was at the center of and is liable for the misconduct alleged, Moreover, contrary to Ms. Ford’s implicit (ifnot explicit) denial that “she knew about [Mr. Estrada’s interception of Plaintiffs? emails, much less that she herself intercepted, used, or disclosed those emails” in the arguments advanced in her motion to dismiss, the new evidence allows for the reasonable inference that Ms. Ford was Mr, Estrada’s confidant referenced in the United States’ Sentencing Memorandum and establishes that Ms. Ford knew of Mr. Estrada’s interception of the @susana2010 domain before and after it happened, Further, there now is evidence that Ms, Ford actually used and disclosed certain of the stolen emails. As setforth in the Introduction, that evidence, although still limited by the difficulties in obtaining discovery from Defendants and Ms. Ford, includes the following: * Ms. Ford knew of Mr. Estrada’s intentions to take over the @susana2010 domain anc! intercept the emails sent to or from the domain before he did so. See, supra (United States’ Sentencing Memorandum in United States v, Esirada, Case No. 1:13-cr-01877, [FCF No. 95 at 6)). Further, after Mr. Estrada “successfully atranged to take control of the domain, {he] clearly reveled {to Ms. Ford] in what he had accomplished.” Id. Ms, Ford thus knew or should have known of the illegality of Mr, Estrada’s intereeption and her subsequent use and disclosure of stolen emails; * Ms. Ford did more than merely receive and possess stolen emails ~ there is now evidence that she forwarded at least one of the stolen emails to Sam Bregman, See 13Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 14 of 19 Exhibit 4;7 + Ms. Ford’s text messages with Mr, Loera either reveal that she knew or provide a basis for a reasonable inference that she knew about Mr. Estrada’s interception of the stolen emails from the @susana2010 domain; * Ms. Ford’s text messages with Mr. Loera either reveal or provide a basis for a teasonable inference that she used, endeavored to use, disclosed, or endeavored to disclose the stolen emails, amongst which were Plaintiffs’ emails. ‘That conduct included without limitation, her efforts to convince Mr, Estrada to disclose the stolen @susana2010 domain emails; * The evidence relating to the FBI considering Ms. Ford a subject of the investigation that led to the indictment of Mr. Estrada for the interception, disclosure and use of the stolen emails allows for the reasonable inference that Ms. Ford knew about Mr, Estrada’s interception of the stolen emails from the @susana2010 domain that she used, endeavored to use, disclosed, or endeavored to disclose the stolen emails, amongst which were Plaintiffs’ emails; + Mr. Loera’s Declaration either reveals that Ms. Ford knew or provides a basis for a reasonable inference that she knew about Mr. Estrada’s interception of the stolen emails from the @susana2010 domain, Mr. Loera states in his Declaration: “Sometime in March or early April 2012, Mr. Bregman, Mr. Lovato, Anissa Ford, and I met at Week’s on Paseo Del Norte in Albuquerque. At that meeting, Ms. Ford told all present that an ‘associate’ of hers was in possession of “a ton of emails’ from a domain used by Governor Martinez and her staff... A follow-up meeting was set up, and Ms. Ford was requested to bring her ‘associate’ to the meeting.” Loera Declaration 9 7 and 9, and Exhibits 4 and 5, * Mr. Locra’s Declaration reveals or provides a basis for a reasonable inference that Ms. Ford used, endeavored to use, disclosed, or endeavored to disclose the stolen emails, amongst which were Plaintiffs’ emails. Mr. Loeta states in his Declaration: “In early June 2012, Anissa Ford sent an email to Sam Bregman and me forwarding stolen email concerning a request for addresses of teachers.” Loera declaration at { 11. See also Exhibits 4 and 5. + Ms. Ford's text messages to Mr. Locra about wanting to talk to a “cyber crime attomey” and her statements to Mr. Loera concerning burying hard drives in her backyard [Loera Declaration | 19; Exhibit 5 at 10381, 3 full paragraph] allows for the reasonable inference that Ms. Ford was well aware that she had engaged in unlawful conduct. Based on the new, although still limited, information Plaintiffs have obtained to date, Plaintiffs ” Although the stolen email itis now known Ms, Ford sent to Mr, Bregman is not to or from any of the Plaintiffs, itis reasonable to infer that if Ms. Ford disclosed and used one email, she disclosed and used others, 14Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 15 of 19 assert that the Order dismissing Ms, Ford as a defendant should be reconsidered and vacated and that Ms. Ford should be rejoined and reinstated as a defendant in this case. Mi, THE STATUS OF THE CASE DOES NOT RESULT IN ANY PREJUDICE TO MS. FORD OR ANY OTHER PARTY. ‘The new evidence obtained after the Court’s March 23, 2015 Order dismissing Ms. Ford as a defendant not only provides factual content that supports reasonable inferences that Ms, Ford is liable for the misconduct alleged in the First Amended Complaint, it provides support for the reasonable inference that but for her role in disclosing certain stolen emails to Mr. Bregman and working with Messrs, Bregman and Loera to convince Mr. Estrada to disseminate the stolen ‘emails so that they could be used and disclosed to other Defendants, Plaintiffs” private emails that were intercepted from the @susana2010 domain and publicly disclosed might still be private today. Fed. R. Civ. P. 1 requires that the Federal Rules of Civil procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” Based on the evidence newly developed to date, reconsideration and reinstatement of Ms, Ford as a defendant in this action is the just result and will prevent injustice of depriving the Plaintiffs an opportunity to prove their claims against Ms. Ford. Rule 54(b) does not impose time limitations on seeking reconsideration and reinstatement ofadismissed party. See, e,g., Dellums v, Powell, 566 F.2d 231 (D.C. App. 1977) (reinstatement of dismissed class-member plaintiffs post-judgment pursuant to Rule 54(b) motion). Prejudice does not appear to be enumerated as a factor to consider in addressing Rule 54(b) issues, See, ¢.g., Rodriguez, 89 Fed. Appx. at 959 (“*Traditionally, courts will find justification for reconsidering interlocutory orders when thore is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to correct a clear error or prevent manifest injustice.") However, to the extent that prejudice is considered in determining whether reinstatement would 15Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 16 of 19 prevent injustice to Piaintifis, the Plaintiffs assert thet the reinstatement of Ms. Ford as a defendant A tis stage ofthe case will not prejudice Ms. Ford or any ofthe other Defendants, Although ight months have passed since the initial Scheduling Order [ECF No. 143] was entered in this case on July 14, 2015, Plantifis fist served discovery requests on July 27, 2015 [ECF No. 148] and diligently pursued discovery from Defendants, which was thwarted by objections and motions for protective orders. See generally case docket, The Defendants have just recently amended and supplemented discovery responses. See, e,g., ECF No. 373, 374, 379, 380, and 396, In Addition, no depositions have been taken, Moreover, the Court will be resetting scheduling dates ata scheduling conference on March 31, 2016. Thus, if this motion is granted and Ms. Ford is reinstated as a defendant, she will be able to actively participate in deposition discovery. CONCLUSION Yor the reasons and on the grounds set forth herein, Plaintiff’ respectfully submnit that this Rule 54(b) motion should be granted, the Order dismissing Ms. Ford as a defendant should be vacated, and Ms, Ford should be reinstated and rejoined as a defendant in this action, DATED: Mareh 22, 2016 Respectfilly Submitted: (s/ Mare D, Flink Mare D. Flink Baker & Hostetler Lup 1801 California St, Suite 4400 Denver, CO 80202-2662 miflink@bakerlaw.com Angelo J, Artuso 1301 Evelyn Ct. NE.(871 12-4629) P.O. Box 51763 Albuquerque, NM 87181 angelo.artuso@brytewerks.com 16Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 17 of 19 Eric A. Packel Baker & Hostetler LP Circa Centre, 12th Floor 2929 Arch Street Philadelphia, PA 19104-2891 epackel@bakerlaw.com Mark B, Braden Baker & Hostetler Lup Washington Square, Suite 1100 Connecticut Avenue, NW ‘Washington, DC 20036-5304 mbraden@bakerlaw.com ‘Theodore J. Kobus, I Baker & Hostetler LLP 45 Rockefeller Plaza, 14th Floor New York, NY 10111 tkobus@bakerlaw.com Patrick J. Rogers Patrick J, Rogers, LLC 20 First Plaza, Suite 725 Albuquerque, NM 87102 patrogers@patrogerslaw.com Attorneys for PlaintiffsCase 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 18 of 19 CERTIFICATE OF SERVICE Thereby certify that a copy of the foregoing PLAINTIFFS’ MOTION PURSUANT TO FED. R. CIV. P. $4(b)TO RECONSIDER THE ORDER DISMISSING ANISSA GALISSINI-FORD AS A DEFENDANT [ECF No. 98], TO VACATE THE DISMISSAL ORDER AS TO MS. FORD, AND TO REINSTATE AND REJOIN MS. FORD AS A PARTY DEFENDANT IN THIS CASE was filed and served through the Court’s electronic filing system this 22nd day of March, 2016 to: Jerry Todd Wertheim Samuei C, Wolf Jones, Snead, Wertheim & Clifford, PA. Post Office Box 2228 Santa Fe, NM 87504-2228 fodd@thejonesfirm.com sam(@the jonesfirm.com Attorneys for Anissa Ford Bruce Wetherbee 329 Rosario Hill Santa Fe, NM 87501 locationsmanager@gmail.com Pro Se Defendant Carolyn M. “Cammie” Nichols Brendan K. Bgan Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu, LLP 500 4th Street NW, Suite 400 Albuquerque, NM 87102 emnichols@rothsteinlaw.com bkegan@rothsteinlaw.com Kristina Martinez Coberly & Martinez LLLP 1322 Paseo de Peralta Santa Fe, NM 87501 kristina@coberlymartinez,com Attorneys for Defendant Michael Corwin Gerald G, Dixon Steven S. Scholl 18Case 1:14-cv-00599-WJ-SMV Document 415 Filed 03/22/16 Page 19 of 19 James C. Wilkey DIXON+SCHOLL*CARRILLO»P.A. P.O. Box 94147 Albuquerque, N.M. 87199-4147 Jdixon@dse-law.com sscholl@dse-law.com iwilkey@dso-lawy.com, Attorneys for Defendant Sam Bregman Zachary A. Ives Emily Molly Schmidt-Nowara Matthew L. Garcia Garcia Ives Nowara 924 Second Street, Suite A Albuquerque, NM 87102 zach@ginlawfirm.com molly@ginlawfirm.com matt@ginlawfirm.com Attorneys for Defendant Jamie Estrada 4s/ Mare D, Flink 19